Gharky v. Werner

5 P. 676, 66 Cal. 388, 1885 Cal. LEXIS 450

• Court: California Supreme Court
• Decided: January 28, 1885
• Docket: No. 8,138
• Status: Published

Opinion

Myrick, J.

Appeal from an order directing the sale of real estate of the testator. The executor described in his petition for thesale ten parcels of real estate, and due notice was given of the day fixed for the hearing. On the day fixed for the hearing, the executor moved the court for leave to amend the petition by adding another parcel of real estate, which motion was granted; the petition was accordingly amended, and as amended, was reverified on that day. Thereupon, without further notice, the court made an order for sale of real estate, which order is appealed from. On the argument in this court it was not contended that the description of the added parcel was not in the inventory of the property of the estate.

It was error to make the order of sale on the petition as amended without further notice. The petition must contain “a general description of all the real property of which the decedent died seized.” (Section 1537, Code of Civil Procedure.) As well might the executor give a description of one parcel, and at the hearing add ten others, as to give ten and' at the hearing add one. The court should have treated the petition, when amended, as a new petition, and have proceeded de novo.

Order reversed and cause remanded for further proceedings.

Ross, J., Thornton, J., McKee, J., Morrison, C. J., Mc-Kinstry, J., and Sharpstein, J., concurred.